Of Fake Apple Stores, Faker Architecture and Real Lawsuits

Shenzhen,_with_Eiffel_tower_in_the_backgrund

China’s seemingly unstoppable economic boom has been attributed to its vast manufacturing of outsourced goods of almost every kind, from simple household products to more sublime symbols of religion. While impressive, the flip side of the world’s largest manufacturer’s reign with respect to intellectual property rights has been exposed, with the World Trade Organization’s critique of China’s copyright laws, through an official complaint launched by the United States, and much international concern over the years. Even though China has frequently hit back, either through law reform, diplomatic denial, and enforcement and crackdowns, the sad truth remains that it is still considered to be a hotbed of intellectual property piracy, and that may be rightly so.

The increasingly innovative and bizarre attempts at illegal reproduction within the country have recently included an entire Austrian village (which is also a UNESCO World Heritage site) for the sake of tourism, and complete Apple retail stores, which was a headlining story last year. While the legal ramifications of the former are still being investigated, given that the copy will be a “back-to-front version” of the original, the shocked residents of the little hamlet of Hallstatt, Austria have not taken kindly to their homes being replicated halfway across the globe, and behind their backs to boot.

However, in the case of the fake stores, Chinese entrepreneurs may finally have bitten off more than they can chew.

When initially exposed in 2011 by an expat blogger living in China, the story was met with incredulousness and skepticism, with many people finding the blatant nose-thumbing of one of the most recognizable brands on the planet to be perhaps just a bit much, even in the gutsy underworld of illegal replication. This prompted the writer of BirdAbroad, the aforementioned blog, to follow-up her claims with videographic evidence. While the now-famous post recounts how even the store’s staff were fooled about the true nature of their employer, the subsequent uncovering of 22 more of these shops across China finally highlighted the true depth of the problem. Apple responded by filing a sealed lawsuit against a Chinatown, New York, based copycat (“Apple Story”), and details listed about 50 other unnamed and illegal retailers in the case as well. Government officials in the China subsequently made some progress in the matter as well, by shutting down two stores. Interestingly, the grounds given for their closure were for a “lack of business licenses,” and not copyright or trademark infringement. And finally, Apple responded by successfully applying for, and getting a trademark on the Apple Store itself, meaning that faking these is now a trademark infringement.

Jason Subler’s analysis of the goings-on brought up the interesting question of whether the presumed lawsuit would have actually created waves on Chinese shores, and if it might have even been “worth it,” on legal grounds, given the constant problems with enforcement. Subler’s proposition that the issue was becoming one of maintaining control over business processes and shares also pointed to the fact that China remains one of the main manufacturing sites for Apple products. Since the products sold in the fake stores were in fact, legitimate Apple devices, the components of which are made within Chinese borders, there might have been a few loopholes the storeowners could have jumped through yet. However, the release of the “hiPhone 5” in China even before the genuine Apple iPhone 5 hit the markets showed that Apple was in for a tough fight to assert its intellectual property rights in the Asian nation, and this remains the case even today.

And Apple Inc. hasn’t been the only one who’s caught between a bullet and a target, or a rock and a hard place. Call it what you will, but China’s position as global-manufacturer-becoming-global-innovator (as we’ve discussed here, previously) is a precarious one at best, especially if the “innovation” is demonstrated through novel means of copying and piracy, and not through original inventions. In architecture, for instance, the Hallstatt reproductions are just one example of replica constructions springing up all over the Asian giant’s lands. Among other things, the country also boasts of an unlicensed World of Warcraft theme park; the legal ramifications of this, if any, are yet to become clear.

Recently though, it seems as though one creator has finally had enough; Zaha Hadid, a London-based architect, who is much in-demand for her unique creations the world over, including in China itself, has brought attention to the country’s “pirate architects,” who are threatening to trump the finish date of a Hadid original with its own copy, leading to some bizarre ramifications to the meaning of copyright law. What if, for instance, depending on the creation dates of the blueprints, plans and finished products, courts decide to rule the original  as an infringement of its copy? Could the meeting of these architectural doppelgängers create an instability in the legal universe of copyright law itself? Could it, in fact, be possible to rule an original expression of an idea an infringement of the exact same expression, because the second expression was finished first?

And, what about the fact that buildings and landmarks add to the unique qualities of a place, inherently contributing to its value? Tourism is one industry that relies heavily on the notion of places as brands, packaging culture, values and yes, architecture as trademarks of a place. Would copycat architecture be to blame if, for instance, Hallstatt’s tourism industry took a hit because going to its imitation Chinese village cost a fraction of the price, even if the overall experience wasn’t quite as authentic?

I will be exploring all of these issues in my next few posts by tying them with the concepts of vandalism, derivative works and trademarked tourism. Meanwhile, it remains to be seen whether the field of architecture will find a way to challenge the cloning culture that seems to be creeping on it so parasitically. Hadid remains optimistic, hoping that future versions of these copied buildings display “innovative mutations.”

 

Image Credit: “Shenzen with Eiffel Tower in the Background,” Steve Jurvetson, Wikimedia Commons

About: Mekhala Chaubal

Mekhala is a graduate of Osgoode Hall Law School, Canada with an interest in all areas of intellectual property (IP) law in a transnational context, privacy rights, and the development of IP in emerging economies. She is currently immersed in learning about innovation, entrepreneurship and the finer points of patent, copyright and trade-mark law as IP Legal Assistant.

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